Detain, Deport, or Prosecute al-Marri?

by Roger Alford

The New York Times has a thoughtful piece by Adam Liptak this weekend on the Obama Administration’s difficult choice in its forthcoming brief in the Supreme Court case of al-Marri v. Pucciarelli. Essentially, the Obama Administration will have to choose between continued detention, deportation to a third country, or prosecution.

Each choice is perilous. If Obama chooses continued detention he will affirm much of the Bush Administration’s central claim that this really is a war on terror and that the legal framework of war authorizes detention of enemy combatants during continued hostilities. Treating terror as war and terrorists as warriors would enrage civil libertarians. Failing to do so would leave Obama open to criticism for being soft on terrorism. Forcing this question in Obama’s first month in office should be avoided at all costs.

That means Obama should find a way to render the case moot. Deporting him to his native country of Qatar is the easiest way to do so. Qatar is a relatively liberal Muslim nation that has extremely good relations with the United States. With an appropriate diplomatic agreement one would think that Obama could structure al-Marri’s deportation and subsequent treatment in Qatar in a way that protects United States national security interests while affording al-Marri his due process.

The final option is to prosecute al-Marri. This could be done either in a military tribunal or through a criminal proceeding. Liptak’s article does not distinguish between these two options and only obliquely addresses the prospects of a successful prosecution. Assessing the merits of this choice depends on the strength of the evidence against al-Marri, which is not apparent to me from the publicly-available information.

The long and the short of it is that Obama does not need and should avoid an early test on this most sensitive topic. The Clinton Administration famously started off on the wrong foot with the military with an early confrontation on gays in the military. Obama needs time to work through his position on the treatment of enemy combatants. It is not an easy issue that can be thoughtfully resolved in his first month in office. Finding a way to get the al-Marri case to go away would be high on my list of priorities if I were in his shoes.

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4 Responses

If al Marri loses before the Supreme Court his case returns to District Court to determine if he is an enemy combatant. Then the US Courts determine his legal status instead of yet another unilateral executive decision to bypass the courts. What is wrong with presenting evidence in court and letting the judge make the decision?

1.06.2009
at 6:28 pm EST Howard Gilbert

Well I’ll be outraged if they do anything with the illegal Guantanamo kangaroo courts but shut them down forthwith.

If in fact this guy is as dangerous as they’ve claimed, then there really is no option but to prosecute him to the fullest extent of the law. Indeed, if in fact he’s that dangerous, it’s an absolute disgrace that he’s not been prosecuted long before now — among so many other disgraceful things the Bush administration has and has not done.

What I find puzzling about this and similar situations is that so many lawyers exhibit such a deep distrust and / or contempt for due process and the rule of law. Are lawyers really so venal that the only thing that matters is manipulating the law to get the result you want regardless of the facts and the law? (Or is just that they’re so certain of their own limitations that cheating becomes habitual?)

There’s not a doubt in my mind that’s how Addington and Yoo operate, and there isn’t a doubt in my mind that such lawyers are a worse threat to the United States than Al-Marri or Al Qaeda ever will be. The law exists to defend all of us — not to serve the demented agendas of subversive fanatics and frauds.

Are you suggesting that deportation to Qatar is not an acceptable option under these circumstances? And as for prosecution, can you clarify whether you think a military tribunal or a criminal prosecution are both viable options? Beyond your sharp rhetoric, I can’t tell what you think is an acceptable option.

Can you also clarify whether you think the international humanitarian regime of detaining POWs is acceptable? I can’t tell from your comments here and elsewhere whether you dispute the concept of the war on terror as a war, or whether you dispute the whole idea of detaining POWs during continued hostilities. Was it, for example, permissible in your view for the United States to hold POWs for years during the Vietnam or Korean Wars?

Incidentally, al-Marri is not being detained in Guantanamo, he is in being held in a Naval Brig in Charleston, South Carolina.

Roger Alford

1.06.2009
at 10:16 pm EST Roger Alford

Roger,

I think deportation is an option legally, but that if the government’s claims have any credible basis (which can’t be assumed), that it would be irresponsible given the nature of the accusations. Further, Al-Marri is a victim of war crimes and crimes against humanity — he’s a material witness, and deporting him would obstruct justice. Bottom line, we don’t have enough credible facts to make a sound decision, and the facts we do have weigh heavily against deportation.

The “military commissions” were what prompted me to start my preposterous little project seven years ago. They are absolutely unlawful and represent criminal offenses p. 18 USC 2441 and several other statues in and of themselves. It would be possible to convene a lawful military commission under pre-existing US military law, but the Bush kangaroo courts are fundamentally unlawful and beyond redemption. They should be shut down, repudiated, and the people responsible for setting them up should be prosecuted. Both the DTA and MCA are facially unconstitutional: they represent an attempt to enact blank-check bills of attainder in violation of Art. I, and to strip the courts of the equity jurisdiction vested in them by Art. III.

I think detaining POWs p. Geneva III arts. 4-5 is perfectly acceptable, but that neither Al-Marri nor any of the other detainees is anything other than a civilian p. Geneva IV — and the question presumes that the conflict is under Geneva common art. 2. The administration has never claimed these people were POWs, and that’s one of the very few things I agree with them on. These people are accused criminals who have been illegally deprived of their rights and due process. Treating them as POWs after seven years of torture and abuse would simply compound the crimes that have already been committed against them.

I have no problem with our holding POWs during the Vietnam and Korean Wars, with the caveat that Korea was under Geneva 1929 as we didn’t ratify Geneva 1949 until 1955 (for reasons having to do with the formal cessation of WW2 I believe).
I do think the Taliban and Al-Qaeda detainees actually captured in combat in Afghanistan could have been held as POWs at the outset, but I’m not willing to condone it so far after the fact, and especially not after all the abuse they’ve been subjected to. Under Geneva, these prisoners are properly civilians IMO, and the Bush administrations “unlawful combatant” paradigm is pure fraud.

I’m well aware that Al-Marri is being held in Charleston. Jose Padilla was also held there, as was Captain James Yee. The treatement of all three represents calculated torture, as does the treatment of every prisoner at Guantanmo Bay and the various other camps in the Bush Gulag.

The GWOT per se is a sham. It is a matter of law enforcement, not war, and the AUMF is one of the most idiotic pieces of legislation ever enacted by the US Congress — it literally amounts to a declaration of war on the entire world, including the United States. It should be repealed without further ado. There is ample authority under title 18 for dealing with terrorism, including the terrorism of George Bush and Dick Cheney. The only thing that the GWOT has accomplished is to make all of the problems worse and squander vast amounts of money in the process.

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